The Committee raises two major concerns with the Stronger Futures policies. The first regards the lack of full involvement of affected communities, both in the formulation and implementation of policies. The right of self-determination under human rights treaties, especially when considered in the context of Indigenous Peoples, requires meaningful consultation and in many cases free, prior and informed consent of affected populations. The Committee recognised the Commonwealth government’s efforts in consulting local communities, but urged widespread and ongoing consultation and cooperation in the implementation, monitoring and evaluation of policies.
The second major concern raised by the Committee related to the limitations on human rights imposed by some of the Stronger Futures measures. The Committee disputed the assertion that the measures restricting certain rights are not discriminatory because they constitute ‘special measures’. The Committee asserted that special measures, as understood under international law, should not include the restriction of rights and an objective or result. The Commonwealth government must therefore demonstrate that measures restricting human rights are justifiable by means other than resorting to special measures. The government bears the onus in proving that a limitation to a right pursues a legitimate objective, that there is a rational connection between the measure and the objective, and that the measure is proportionate.
The Stronger Futures legislation overwhelmingly affects Aboriginal and Torres Strait Islander peoples. The Committee observed that although the UN Declaration on the Rights of Indigenous Peoples has not been enacted into Australian domestic law, it is an important and relevant instrument for the Committee’s work, providing guidance in interpreting the scope of the rights that fall within its mandate.
While the Committee supported the government’s objectives to enhance the protection of certain fundamental rights through its policies, it warned that certain measures, namely income management, and school enrolment and attendance measures, represent strong incursions into family and private life. The report recommended that the Committee continue to oversee the implementation of measures to ensure they are effective and accepted by affected populations.
BEN SCHOKMAN, Human Rights Law Centre.